The Montana Constitution’s authoritarian mandates

“All men . . . are endowed by their Creator with certain unalienable rights . . . to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed . . . . ”

These words from the Declaration of Independence reflect America’s founding creed: We have certain God-given rights, and we create government to protect them.

Then why does the current Montana state constitution impose so many broad and vague mandates that restrict liberty instead of protecting it?

This is the sixth in a series explaining why, in 2030, Montanans should vote for a state constitutional convention to propose revisions in Montana’s basic law.

The constitution’s preamble is a beautiful statement consistent with America’s founding creed: “We the people of Montana . . . to secure the blessings of liberty for this and future generations do ordain and establish this constitution.” But as we go further into the document, we find blemishes. For example, Article II, Section 1 correctly states that “All political power is . . . derived from the people,” but then avers that “government . . . is instituted solely for the good of whole,” rather than to protect individual rights.

Article IX, Section 1 imposes a duty on “each person” to “maintain and improve a clean and healthful environment.” We all want a clean and healthy environment, but precisely what does Section 1’s language mean? May the state impose forced labor for environmental cleanup? Does it mean a person cannot develop his property unless the development serves government interests—as the Montana Supreme Court has suggested?

Similarly, Article II, Section 3 acknowledges that Montanans have certain rights, but then it adds vague language about “corresponding responsibilities.” The constitution defines and limits the rights, but not the responsibilities.

Presumably, defining the responsibilities is the duty of the legislature.  Could the legislature enact a law stating that the right of free speech is contingent on the responsibility of not criticizing the legislature? The U.S. Constitution protects us from a law like that. But it is not clear that the Montana constitution does.

Article II, Section 4 prohibits private parties (as well as the state) from discriminating, “against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.”

Does it violate the Montana Constitution for religious denominations to limit membership to fellow believers? Must a political party admit opponents to voting membership? May individuals choose spouses and friends based partly on their “sex,” “culture,” or “ideas”—or is that unconstitutional?

Hopefully not. But the constitution doesn’t say so.

Article II, Section 33 prohibits hiring armed personnel from out-of-state. Some observers believe this bans private as well as governmental importations. But is it really unconstitutional for a person or company subjected to death threats or crime to hire an out-of-state security firm for protection?

Despite Article II, Section 1’s statement about political power being derived from the people, the Montana Supreme Court has repeatedly claimed that the constitution is not a grant of power to the state from the people—that it is merely a limitation on an otherwise omnipotent state government. This is an incredible statement for an American court to make. Where do the justices think state power comes from?

Authoritarian mandates do not belong in a constitution for a free people. And a constitution should leave no doubt that the people, not the government, are the source of all political power.

A state constitutional convention will be able to propose these corrections.